Pressure Builds on US EPA to Process e-RINs

The RFS Power Coalition met with the U.S. Office of Information and Regulatory Affairs as part of its public outreach process, to share a few thoughts about electric renewable identification numbers.

By Bob Cleaves | June 26, 2019

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Across from the White House tucked in behind the Renwick Gallery is a little-known federal office that goes by the name OIRA, or Office of Information and Regulatory Affairs. Created in 1980, OIRA (pronounced “of-eye-ruh”) is tasked with ensuring that significant regulations are carefully reviewed for their impacts on business, and to make sure that all federal agency viewpoints are coordinated. In effect, OIRA serves as the gatekeeper before draft regulations become public.

As you can imagine, OIRA plays a critical role in the development of annual volume obligations under the Renewable Fuel Standard, including the release of the proposed 2020 renewable volume obligation (which will likely be released before the publishing of this column). For that reason, the RFS Power Coalition was keenly interested in meeting with OIRA as part of its public outreach process, to share a few thoughts about electric renewable identification numbers, or e-RINs. When we were given a time slot earlier this month, we jumped at the opportunity.

Though not a secretive affair—documents we shared are available online—there is no transcript of the meeting, and OIRA was in listening mode only, sort of like talking to your Amazon Echo, but hearing nothing back. Since “information is the best disinfectant,” borrowing from the words of Justice Louis Brandeis, we thought we would reconstruct our dialogue with OIRA, albeit in an abbreviated fashion with some editorial license, to give readers a flavor for the conversation.

OIRA: “Thanks for coming in. You have 30 minutes.”

Us: “Thanks for the opportunity to meet. The waste-to-energy industry provides important infrastructure across the country for the management of wastes, and enhances local communities while providing renewable, domestically sourced, carbon-friendly electricity. The biogas industry complements rural America by allowing farms to cost-effectively and sustainably convert waste to energy. And the biomass industry, like other technologies, creates baseload power but without the benefit of federal subsidies that other technologies like solar and wind receive.”

OIRA: “Thanks for that background. That’s helpful.”

Us: “Let’s get down to brass tacks. We aren’t seeking a shift in policy or asking for a change in law. For 11 years, the EPA has ignored electricity in the RFS. Congress authorized it in 2007. EPA approved it in 2010. Biogas-to-power became an approved pathway in 2014. This is a simple case of an agency refusing to undertake what we lawyers call a nondiscretionary duty. The effects of EPA’s failure to act are significant. All of our industries are experiencing closures. It’s not up to EPA to pick and choose which transportation fuels to make part of the RVO. Congress already made that decision.”

OIRA: (Listening and taking notes.)

Us: “So, why should OIRA care? For a host of reasons. First, we have an action before the D.C. Circuit, challenging EPA’s failure to include e-RINs in the 2019 RVO. Unless you know something we don’t, the 2020 RVO will also be silent on e-RINs, and EPA will again be promulgating an unlawful rule. And second, if OIRA authorizes this rule and allows it to go forward, it runs the risk of the court reversing the rule and retroactively imposing further obligations on RIN buyers to make up for the volume not counted in the rule. This will send the RFS program into complete disarray and create extreme market turmoil.”

OIRA: “You have a few minutes until our next meeting.”

Us: “And here’s the last reason OIRA should care—under the RFS, EPA has the statutory duty to consult the U.S. Energy Information Administration when promulgating the RVO (the statutes uses these words: “in coordination with the Secretary of Energy and the Secretary of Agriculture”). We already know how USDA feels about e-RINs. They support them. So what about DOE? Well, to the best of our knowledge, EPA never consulted DOE on the amount of electricity used for transportation. But we have. And this is what we learned in the chart nearby. So please, send this rule back to EPA and ask them to consult the same DOE we did, and include e-RINs in the 2020 RVO. Eleven years, 168 days, and 15 hours, roughly, is quite long enough.”

OIRA: “Thanks for coming in.”

That was it, the entire 30-minute meeting. As you can see, we did not get much in the way of feedback from our friends at OIRA. However, we got the chance to make our case, and I believe it’s a strong one. Around the same time as our meeting, a letter from a bipartisan group of 21 members of Congress was sent to EPA Administrator Andrew Wheeler, advocating for the immediate processing of the electric pathway. A few days later, a bipartisan letter from nine Senators went to Wheeler, asking for a status update after President Trump signed an appropriations bill in February. The letter “strongly encouraged” the EPA to process electric pathway applications within 90 days.

We will continue pursuing our case until we are successful. If your company is interested in getting involved with our RFS Power Coalition, please reach out to us.